0120110272
02-08-2012
Cynthia H. Boyd, Complainant, v. Ray Mabus, Secretary, Department of the Navy, Agency.
Cynthia H. Boyd,
Complainant,
v.
Ray Mabus,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0120110272
Agency No. DON-10-43354-02563
DECISION
Complainant filed a timely appeal with this Commission from the
Agency's decision dated September 22, 2010, dismissing her complaint
of unlawful employment discrimination in violation of Title VII of the
Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e
et seq. and the Age Discrimination in Employment Act of 1967 (ADEA),
as amended, 29 U.S.C. § 621 et seq. Upon review, the Commission finds
that Complainant's complaint was improperly dismissed pursuant to 29
C.F.R. § 1614.107(a)(1) for failure to state a claim.
BACKGROUND
At the time of events giving rise to this complaint, Complainant
worked as a Human Resources Assistant at the Agency’s Personnel
Service Detachment in Camp Lejeune, North Carolina. On July 29, 2010,
Complainant filed an EEO complaint alleging that the Agency subjected
her to discrimination on the bases of sex (female) and age (52) when,
on June 9, 2010, a management official issued her a Letter of Proposed
Removal and Notice of Administrative Leave for failing to maintain
eligibility for a security clearance.
On September 22, 2010, the Agency issued a final decision dismissing the
complaint pursuant to 29 C.F.R. 1614.107(a). The Agency determined that
the complaint alleged a preliminary step and, therefore, Complainant
was not aggrieved. Furthermore, Complainant failed to show an injury
affecting a term, condition, or privilege of employment. As a result,
the Agency dismissed the claim.
Complainant submitted no contentions or arguments on appeal, but provided
the Commission with a copy of the Agency’s Notice of Removal dated
August 26, 2010.
ANALYSIS AND FINDINGS
After a careful review of the record, the Commission finds the instant
complaint states a claim under EEOC regulations. The record reveals that
Complainant has alleged more than simply a proposed action. Specifically,
Complainant alleges that, on or about June 9, 2010, she was notified that
her security clearance had been denied and that she would be placed on
administrative leave. The Officer-in-Charge informed Complainant that she
had 10 days to resolve the matter and ordered her to vacate the building
immediately. Further, Complainant stated that she was escorted back
to collect her personal belongings and accompanied out of the building
to the parking lot. Complainant asserted that she felt humiliated,
ashamed, and was treated like a criminal. Thus, the record establishes
that Complainant has alleged more than just a preliminary action.
In addition, as to the proposed removal, the Commission notes that
where an individual received EEO counseling on a proposed action and
the Agency ultimately carries out the proposed action, the otherwise
premature allegation merges with the effectuated action. See Siegel
v. Dep't of Veterans Affairs, EEOC Request No. 05960568 (Oct. 9, 1997);
Rose v. Dep’t of Veterans Affairs, EEOC Request No. 05950240 (July 27,
1995); Charles v. Dep’t of the Treasury, EEOC Request No. 05910190
(Feb. 25, 1991). While the June 9, 2010 letter indicated that it was
a proposed action, the record reveals that Complainant was subsequently
issued a Notice of Removal effective August 27, 2010. Since the removal
that Complainant contemplated actually took place, the premature claim
merges with the effectuated action. Complainant has therefore shown
an injury or harm to a term, condition, or privilege of employment
for which there is a remedy. See Diaz v. Dep't of the Air Force, EEOC
Request No. 05931049 (Apr. 21, 1994).
CONCLUSION
Accordingly, the Agency's final decision dismissing Complainant’s
complaint is REVERSED. The complaint is hereby REMANDED to the Agency for
further processing in accordance with this decision and the Order below.
ORDER (E0610)
The Agency is ordered to process the remanded claims in accordance with
29 C.F.R. § 1614.108. The Agency shall acknowledge to the Complainant
that it has received the remanded claims within thirty (30) calendar
days of the date this decision becomes final. The Agency shall issue
to Complainant a copy of the investigative file and also shall notify
Complainant of the appropriate rights within one hundred fifty (150)
calendar days of the date this decision becomes final, unless the matter
is otherwise resolved prior to that time. If the
Complainant requests a final decision without a hearing, the Agency
shall issue a final decision within sixty (60) days of receipt of
Complainant’s request.
A copy of the Agency’s letter of acknowledgment to Complainant and a
copy of the notice that transmits the investigative file and notice of
rights must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION’S DECISION (K0610)
Compliance with the Commission’s corrective action is mandatory.
The Agency shall submit its compliance report within thirty (30) calendar
days of the completion of all ordered corrective action. The report shall
be submitted to the Compliance Officer, Office of Federal Operations,
Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC
20013. The Agency’s report must contain supporting documentation, and
the Agency must send a copy of all submissions to the Complainant. If the
Agency does not comply with the Commission’s order, the Complainant
may petition the Commission for enforcement of the order. 29 C.F.R. §�
�1614.503(a). The Complainant also has the right to file a civil action
to enforce compliance with the Commission’s order prior to or following
an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407,
1614.408, and 29 C.F.R. § 1614.503(g). Alternatively, the Complainant
has the right to file a civil action on the underlying complaint in
accordance with the paragraph below entitled “Right to File a Civil
Action.” 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for
enforcement or a civil action on the underlying complaint is subject
to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999).
If the Complainant files a civil action, the administrative processing of
the complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. § 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
The Commission may, in its discretion, reconsider the decision in this
case if the Complainant or the Agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the
policies, practices, or operations of the Agency.
Requests to reconsider, with supporting statement or brief, must be filed
with the Office of Federal Operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party’s timely request for reconsideration. See 29
C.F.R. § 1614.405; Equal Employment Opportunity Management Directive
for 29 C.F.R. Part 1614 (EEO MD-110), at 9-18 (November 9, 1999).
All requests and arguments must be submitted to the Director, Office of
Federal Operations, Equal Employment Opportunity Commission, P.O. Box
77960, Washington, DC 20013. In the absence of a legible postmark, the
request to reconsider shall be deemed timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 29 C.F.R. § 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. § 1614.604(c).
COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (R0610)
This is a decision requiring the Agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. In the alternative, you may file a
civil action after one hundred and eighty (180) calendar days of the date
you filed your complaint with the Agency, or filed your appeal with the
Commission. If you file a civil action, you must name as the defendant
in the complaint the person who is the official Agency head or department
head, identifying that person by his or her full name and official title.
Failure to do so may result in the dismissal of your case in court.
“Agency” or “department” means the national organization,
and not the local office, facility or department in which you work.
Filing a civil action will terminate the administrative processing of
your complaint.
RIGHT TO REQUEST COUNSEL (Z0610)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request from the Court that
the Court appoint an attorney to represent you and that the Court also
permit you to file the action without payment of fees, costs, or other
security. See Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. § 2000e et seq.; the Rehabilitation Act of 1973, as amended,
29 U.S.C. §§ 791, 794(c). The grant or denial of the request is within
the sole discretion of the Court. Filing a request for an attorney with
the Court does not extend your time in which to file a civil action.
Both the request and the civil action must be filed within the time limits
as stated in the paragraph above (“Right to File a Civil Action”).
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
February 8, 2012
Date
2
0120110272
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013